A refugee judge who found it hard to believe that a domestic abuse victim from Botswana did nothing to get help “before allowing herself to be beaten some 100 times” rejected her claim for asylum based on her alleged lack of credibility.

Now those findings are at the centre of a legal challenge by Tshegofatso Kgang, a 42-year-old mother of three, whose attempt to have the decision quashed will be heard in Federal Court in October. Her lawyer alleges the judge’s findings were sexist, a case of blaming the victim.

“He made me feel guilt, that I did something wrong and I’m guilty of not getting help and coming here,” Kgang, a former registered nurse, said in an interview Thursday. “It’s intimidating when you answered their questions and they didn’t believe in what you had to tell them.”

Immigration and Refugee Board member Michael Sterlin wrote in his decision refusing Kgang’s claim that “The claimant made insufficient efforts to avail herself of the protection of her own state before coming to Canada.”

“If the claimant were truly beaten some 100 times in 10 months, then she would have reported her husband to the police, tried to take shelter, or do something to put herself out of harm’s way,” he said further.

“It is entirely possible that if the claimant had reported her husband to the police after the first beating, or after a few beatings, then he may have been constrained from beating her again.”

After numerous beatings, Kgang says, she did finally go to hospital and to police and finally moved into her mother’s home with her children. Her husband was never charged by local police.

Through the IRB, Sterlin — a senior paralegal for the Ontario Realty Corporation before his 2008 IRB appointment — declined to comment on the case, citing the board’s policy banning adjudicators from speaking to the media.

“As the matter you are enquiring about is currently before the Federal Court, it would not be appropriate for the IRB to comment on the case itself or on the issues which are before the Court,” said an IRB spokesperson.

Kgang had two daughters, now 19 and 18, from a previous relationship, when she married her alleged abuser, a telecommunications engineer, in 2000. The couple has a 13-year-old son.

Her husband, she alleged, became moody and physically abusive when he lost his job in May 2010. “He’d get drunk, pushed me, screamed at me, choking me, hitting me and kicking me,” said Kgang.

Not unlike many Canadian victims of domestic abuse, Kgang said she couldn’t explain why she continued to stay in an abusive relationship.

“He’d say he’s sorry for what he’d done, and I accepted it. I can’t explain why. I had three children. It’s not like I could just walk out from my home,” she said. “You go to the police and they ask you how you can be raped by your husband. You can’t talk about rape in a marriage.”

Kgang and her children later fled to her parents’ home. When her estranged husband stormed the house and threatened to kill her, she claimed, her mother told her to leave for Canada, which didn’t require visas for citizens of Botswana.

Sterlin challenged Kgang’s credibility because she had told the port of entry she had been “emotionally assaulted and raped” by her husband but, at the asylum hearing, she claimed “he physically assaulted as well as raped her.”

The refugee judge also questioned why Kgang’s three children were left with the alleged abuser and her mother did not take legal action to get them back. “This is further indication that the husband is not abusive as the claimant alleges,” Sterlin wrote.

Although Sterlin began his decision by citing the IRB’s gender guidelines, launched in 1993 to help members deal with gender-based persecution claims, Kgang’s lawyer, Aadil Mangalji, said Sterlin’s comments were sexist.

“The victim blaming is a huge problem. The idea that she allowed herself to be beaten up more than 100 times makes her feel the domestic violence was her fault,” said Mangalji, who will also argue that Kgang’s former counsel was negligent in representing the client.

In a reply to court, government lawyers said Sterlin had properly considered and applied the board’s gender guidelines.

“A proper application of the gender guidelines does not dictate a certain result with respect to credibility. It is entirely reasonable for the board to be sensitive to the female applicant’s particular circumstances as a woman but still find that the female applicant’s story is not credible,” they argued in their submission.

“The board in this case found the incredible number of beatings described by the applicant made this difficult to accept, particularly given that the applicant did ‘not document any of these beatings except by the hospital and police report in regard to the alleged beating of March 15, 2011.’”

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